Council of State Canceled Articles 1 and 2 of the Associations Regulation

As a result of the administrative lawsuit filed by the Political Science Graduates Union, the Council of State canceled Article 1 and 2 of the Regulation on Amending the Regulation on Associations. The Council of State canceled 2 articles, which entered into force on October 1, 2018, with the amendment of the Regulation ‘as it expands the limits of the authority granted to the administration and will ensure the processing of personal data and private data without express consent’.

As a result of the lawsuit filed by the Political Science Graduates Union, the issues put forward as grounds for annulment in the action for annulment filed against the Regulation on Amending the Regulation on Associations were as follows:

• ‘Fundamental rights and freedoms can only be limited on the basis of a Law,
• Therefore, it is not foreseen to include the information about the members and the personal data of the members in the declaration,
• Those who are not notified by the Law cannot be notified by the Regulation, and requiring the members to report their identity information and membership status to the civil authority means an interference with the freedom of association,
• It is not clear for what purpose this information will be used, and the right to personal data protection is violated.’

In the decision to cancel Articles 1 and 2 of the Regulation taken by the 10th Chamber of the Council of State upon the application of the Political Science Graduates Union it is stated that long after the regulation that is the subject of the lawsuit, the obligation to notify the members of the association’s head office with the name, surname, date of birth and identity number of the original and substitute members elected, as well as those accepted to membership and those whose membership has expired, should be brought within 45 days from the date of termination of membership or the date of the acceptance of the membership, and due to the ineffectiveness of the laws enacted in accordance with the ‘Principle of Non-Retroactivity of Laws’ on the past and the legal situations that have gained a definitive character, ‘It is not possible to accept that the arrangement made by the Law after the arrangement made by Regulation, which is the subject of the lawsuit, constitutes a basis for the Regulation that is the subject of the lawsuit’.

In addition, in the decision of the Council of State, according to Article 20 of the Constitution titled ‘Privacy of Private Life’, personal data can only be processed in cases stipulated by the law or with the explicit consent of the person; Pursuant to the provision of the Law on the Protection of Personal Data, it is stated that the data regarding the membership of associations, foundations or trade unions are accepted as special quality personal data and the processing of sensitive personal data without the explicit consent of the person concerned is prohibited.

In summary, in the annulment decision taken by the Council of State, in accordance with the provisions of the Constitution and the Law, 2 articles are annulled on the grounds that ‘Although not regulated in the law, there is no legal right in the regulation in question, which expands the limits of the authority granted to the defendant administration and ensures that personal data and personal data of a special nature are processed without obtaining explicit consent’.

Details of the decision can be accessed here.